Viewpoint Discrimination by Public Universities: Student Religious Organizations and Violations of University Nondiscrimination Policies

Washington and Lee Law Review, Spring 2004 by Snider, Mark Andrew

Some have also argued that because freedom of religion might give rise to a constitutional right to discriminate,52 the application of nondiscrimination policies to student religious organizations is improper.53 However, this Note does not explore that argument in depth for two reasons. First, the Supreme Court precedents involving viewpoint discrimination against student religious organizations never have rested on freedom of religion principles,54 so a student religious organization that is refused recognition is less likely to use a religion-based defense than a speech-based or association-based defense.55 Second, because the Supreme Court has held that religious practices can be outlawed under generally applicable criminal laws, so long as legislators did not intentionally design the laws to affect a specific religion,56 a free exercise challenge to a generally applicable nondiscrimination policy is more difficult to support.57

III. Viewpoint and Content Discrimination by the Public University

A. Forum Analysis

The analysis of freedom of association cases often involves classifying the type of forum in which the restrictions on speech and association occur. The Supreme Court has identified three forums within which public speech occurs: the traditional public forum, the designated public forum, and the limited public forum.58 In the handful of cases in which the Court has considered the question, it has treated student organizations as existing within either a designated public forum59 or a limited public forum.60 Either way, when the Court has found that something less than a traditional public forum exists-that is, a designated public forum or a limited public forum-the Court has allowed the governmental entity controlling the forum the latitude to enact some reasonable "time, place, and manner" restrictions61 upon access to the forum, so long as the restrictions are viewpoint neutral.62 Once a public university establishes a forum for student organizations' speech, the university's status as a state actor triggers constitutional guarantees against viewpoint and contentbased discrimination by the university.63

The Supreme Court has frowned upon attempts by public universities to deny recognition of student organizations based on the organizations' viewpoint. In Healy v. James,64 the Court found that nonrecognition of a student organization stifled students' First Amendment rights to speech and association.65 The Court rejected the university's claim that because the group could still congregate off-campus, nonrecognition did not deny freedom of association; the Court noted that nonrecognition denied the group access to campus facilities and assets and prevented it from recruiting and advertising on campus.66 It required that the university bear the burden of justifying nonrecognition, a "heavy burden" that it could meet only if it could show a compelling state interest.67 The Court ruled against the university, concluding that the university did not demonstrate that nonrecognition reasonably related to the advancement of a compelling state interest and that no narrower measure would have accomplished that result.68